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June 4, 2015, Trial News

Deadly Amtrak train derailment leads to litigation

Alyssa E. Lambert

Eight people were killed and more than 200 were injured when a speeding Amtrak train derailed on May 12. About a dozen personal injury lawsuits have been filed since then.

About a dozen personal injury lawsuit have been filed in the wake of an Amtrak train derailment that killed eight people and injured more than 200 others on May 12. The train, which originated in Washington, D.C., and was bound for New York City, was just north of Philadelphia when it derailed on a sharp curve. The speed limit on the curve was 50 mph, but black box data showed that the train was going 106 mph.

The derailment occurred on the country’s busiest train route—the Northeast Corridor—which runs from Washington., D.C., to Boston. More than 750,000 people travel it daily. Service was suspended for five days after the accident, and the National Transportation Safety Board is still investigating. The train’s engineer, Brandon Bostian, suffered a concussion and said he has no recollection of the accident.

An Amtrak employee, Bruce Phillips, filed the first lawsuit in the Eastern District of Pennsylvania under the Federal Employers’ Liability Act (FELA). Phillips alleges he suffered brain trauma and multiple contusions and lacerations. He and his wife seek at least $150,000 in compensatory damages and $150,000 in punitive damages. (Phillips v. Nat’l R.R. Passenger Corp. (Amtrak), No. 2:2015cv02694 (E.D. Pa. filed May 14, 2015).)

A group of passengers filed the second lawsuit. Felicidad Iban’s right arm was nearly severed after being pinned in the wreckage, and she required several surgeries to avoid amputation. Daniel Armyn suffered three broken ribs, a pelvic injury, a torn ACL and MCL in one knee, bruised lungs, and loss of several teeth. They and two others sued Amtrak for negligence and are seeking unspecified damages. (Iban v. Nat’l R.R. Passenger Corp., No. 2:2015cv02744 (E.D. Pa. May 18, 2015).)

Most of the personal injury lawsuits have been filed in the Eastern District of Pennsylvania, but others have been filed in New Jersey and New York state courts. Some plaintiffs have also named Bostian as a defendant. And most, if not all, are seeking punitive damages. Roseland, N.J., attorney Bruce Nagel, who represents one of the train conductor plaintiffs, said Amtrak’s “negligence demonstrates a willful and wanton disregard for the safety of passengers.”

Passengers and crewmembers allege that Amtrak was grossly negligent because it failed to install automatic train control (ATC), which can slow or stop a speeding train. Although the technology was in place on the southbound side of the tracks, Amtrak installed ATC on the northbound side only after the accident.

Philadelphia attorney Robert Mongeluzzi, who represents the Iban plaintiffs, said that speed and the lack of ATC are the two biggest issues in the cases. “Automatic train control was in use for southbound trains, and when I found out about it, I was shocked. That proves Amtrak had the technology and could have done it but didn’t. There’s no excuse and no justification for that,” he said. “If it had ATC in place [on the northbound side], the train would have slowed down, regardless of whether the conductor was speeding.”

On May 21, the Federal Railroad Administration issued an emergency order requiring Amtrak to submit plans for enabling ATC at curves on the Northeast Corridor line where the speed limit approaching the curve is more than 20 mph faster than the limit in the curve. If that’s not possible, Amtrak must take other measures to guarantee its trains follow speed limits. For example, it could require an engineer to radio a conductor before reaching places where the trains are supposed to slow down significantly, and if the train continues moving, the second employee could throw the emergency brake.

Following a deadly train collision in California in 2008, Congress imposed a December 2015 deadline for nationwide installation and operation of positive train control (PTC), a more advanced system than ATC that will be able to continuously monitor trains’ speed and location and automatically slow or stop trains at any point. Amtrak said it can have PTC on the Northeast Corridor by Dec. 31, but the Association of American Railroads said that more than 80 percent of the track covered under the requirement won’t be finished by that deadline.

Washington, D.C., attorney Patrick Regan said that, similar to the California crash, the biggest challenge in the Amtrak cases will be the $200 million damages cap for any single railroad accident. Claims brought by Amtrak employees under FELA are exempt from the cap. “In all likelihood, there will not be enough money to compensate the people who were seriously injured or the wrongful death cases,” Regan said.

Sen. Bill Nelson (D-Fla.) introduced a bill to the Senate Transportation Committee that would more than double the nearly 20-year-old cap to $500 million. “The cap was unconscionably low then, and it hasn’t been indexed or adjusted for inflation. . . . It shows that in a mass catastrophe like this, the cap is grossly unfair. The people who will be hurt the most [by the cap] are the people who have lost a loved one or were seriously injured,” Regan said.

“Given the number of deaths and injuries, there is a substantial probability that the combined value of all the cases will exceed $200 million, and I believe there will be a constitutional challenge,” Mongeluzzi said. He added that while no damages cap is reasonable, the proposed increase is “certainly more reasonable than the $200 million.”

Mongeluzzi believes hundreds of claims will be filed. Regan, who was involved in the MDL resulting from the 2009 Washington, D.C., Metro collision that killed nine people, said an MDL is likely.

As for the possibility of early global settlement or an independent review by a claims administrator, Mongeluzzi said it is too early to tell whether Amtrak will seek to avoid protracted litigation or dig in its heels. “Given it did not install automatic train control and cameras when it should have—and it did not install positive train control—the track record of Amtrak has been a poor one, so I can’t possibly guess as to what it is going to do,” he said.

Before the House Transportation and Infrastructure Committee on Tuesday, federal regulators and Amtrak officials faced tough questions about the crash, how it could have been avoided, and what safety improvements are necessary to prevent similar incidents in the future. Amtrak President and CEO Joseph Boardman testified that the derailment could have been prevented if ATC or PTC had been operational on the northbound tracks.